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IN THE SUPREME COURT
STATE OF WYOMING
OCTOBER TERM, A.D. 2015
An Inquiry Concerning the Honorable Ruth
Neely, Municipal Court Judge and Circuit
Court Magistrate, Ninth Judicial District, No. J-16-0001
Pinedale, Sublette County, Wyoming
Judge Ruth Neely
Petitioner,
v.
Wyoming Commission on Judicial Conduct
and Ethics
Respondent.
AMICUS BRIEF OF THE BECKET FUND FOR RELIGIOUS LIBERTY
IN SUPPORT OF THE HONORABLE RUTH NEELY’S PETITION
OBJECTING TO THE COMMISSION’S RECOMMENDATION
Douglas W. Bailey
WSB#7-5102
BAILEY | STOCK | HARMON | COTTAM P.C.
221 E. 21st Street
P.O. Box 1557
Cheyenne, WY 82003
(307) 638-7745 Fax: (307) 638-7749
Local Counsel for Amici Curiae
Luke Goodrich*
Daniel Blomberg*
THE BECKET FUND FOR RELIGIOUS LIBERTY
1200 New Hampshire Ave. NW
Suite 700
Washington, DC 20036
(202) 955-0095 Fax: (202) 955-0090
Counsel for Amicus Curiae
*Admission pro hac vice pending
ii
TABLE OF CONTENTS
TABLE OF AUTHORITIES .............................................................................................. iii
SUMMARY OF ARGUMENT ........................................................................................... 1
ARGUMENT ....................................................................................................................... 3
I. The Commission’s recommendation to remove Judge Neely from
judicial office violates Article 1, section 18 of the Wyoming Constitution ............. 3
A. The text and history of Article 1, section 18 show that religious
views on marriage do not render a judge incompetent to hold
public office ........................................................................................................ 5
B. The Commission’s recommendation violates Article 1, section 18 ................. 10
II. The Commission’s recommendation to remove Judge Neely from
both of her judicial positions violates the Free Exercise Clause of
the U.S. Constitution .............................................................................................. 14
A. The Commission’s recommendation impermissibly punishes
Judge Neely for her religious beliefs ................................................................ 15
B. The Commission’s recommendation is not neutral because
it targets Judge Neely’s religious conduct ........................................................ 15
C. The Commission’s recommendation is not generally
applicable because it favors nonreligious conduct ........................................... 19
D. The Commission’s recommendation fails strict scrutiny ................................. 21
1. There is no compelling interest in requiring Judge
Neely to perform wedding ceremonies that violate
her faith ........................................................................................................ 22
2. Removing Judge Neely is not the least restrictive means
of furthering the Commission’s stated interests .......................................... 27
a. Wyoming has other ways of ensuring full access to
marriage ceremonies without punishing Judge Neely ........................... 28
b. There are numerous less restrictive ways of addressing
concerns about perceived bias or partiality ........................................... 29
CONCLUSION ................................................................................................................. 30
iii
TABLE OF AUTHORITIES
Cases Page(s)
Axson-Flynn v. Johnson,
356 F.3d 1277 (10th Cir. 2004) ................................................................................... 19
Blackhawk v. Pennsylvania,
381 F.3d 202 (3rd Cir. 2004) ....................................................................................... 19
Braunfeld v. Brown,
366 U.S. 599 (1961) ..................................................................................................... 15
Burwell v. Hobby Lobby,
134 S. Ct. 2751 (2014) ............................................................................................. 1, 27
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520 (1993) .............................................................................................. passim
City of Boerne v. Flores,
521 U.S. 507 (1997) ..................................................................................................... 21
Davila v. Gladden,
777 F.3d 1198 (11th Cir. 2015) ................................................................................... 29
Dworkin v. L.F.P., Inc.,
839 P.2d 903 (Wyo. 1992) ............................................................................................. 7
Employment Div. v. Smith,
494 U.S. 872 (1990) .............................................................................................. passim
Fraternal Order of Police Newark Lodge
No. 12 v. City of Newark,
170 F.3d 35 (3rd Cir. 1999) ............................................................................. 20, 21, 22
Frudden v. Pilling,
742 F.3d 1199 (9th Cir. 2014) ..................................................................................... 26
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,
546 U.S. 418 (2006) ..................................................................................................... 23
Good News Club v. Milford Central Sch.,
533 U.S. 98 (2001) ....................................................................................................... 25
Heffernan v. City of Paterson,
No. 14–1280, 2016 WL 1627953 (April 26, 2016) ..................................................... 27
iv
Holloman v. Harland,
370 F.3d 1252 (11th Cir. 2004) ................................................................................... 27
In re LePage,
18 P.3d 1177 (Wyo. 2001) ............................................................................................. 5
In re Roberts’ Estate,
133 P.2d 492 (Wyo. 1943) ..................................................................................... 26, 28
Kaahumanu v. Hawaii,
682 F.3d 789 (9th Cir. 2012) ....................................................................................... 26
McDaniel v. Paty,
435 U.S. 618 (1978) ..................................................................................................... 16
Miller v. City of Laramie,
880 P.2d 594 (Wyo. 1994) ..................................................................................... 22, 23
Miller v. Davis,
123 F. Supp. 3d 924 (E.D. Ky. 2015) .......................................................................... 28
Obergefell v. Hodges,
135 S. Ct. 2584 (2015) .......................................................................................... passim
Rep. Party of Minn. v. White,
416 F.3d 738 (8th Cir. 2005) ....................................................................................... 27
Rep. Party of Minn. v. White,
536 U.S. 765 (2002) ............................................................................................... 22, 25
Sherbert v. Verner,
374 U.S. 398 (1963) ............................................................................................... 15, 23
Snyder v. Phelps,
562 U.S. 443 (2011) ..................................................................................................... 23
State v. Hershberger,
462 N.W.2d 393 (Minn. 1990) ................................................................................... 6, 7
State v. Jefferis,
178 P. 909 (Wyo. 1919) ............................................................................................... 10
Thomas v. Review Bd.,
450 U.S. 707 (1981) ..................................................................................................... 22
v
Torcaso v. Watkins,
367 U.S. 488 (1961) ..................................................................................................... 15
U.S. v. Playboy Ent’mt Grp., Inc.,
529 U.S. 803 (2000) ..................................................................................................... 27
Vasquez v. State,
990 P.2d 476 (Wyo. 1999) ............................................................................................. 5
W. Va. St. Bd. of Ed. v. Barnette,
319 U.S. 624 (1943) ....................................................................................................... 2
Walters v. State ex rel. Wyo. Dep’t of Transp.,
300 P.3d 879 (Wyo. 2013) ............................................................................................. 7
Washakie Cnty. Sch. Dist. No. One v. Herschler,
606 P.2d 310 (Wyo. 1980) ........................................................................................... 22
Williams-Yulee v. Florida Bar,
135 S. Ct. 1656 (2015) ................................................................................................. 21
Wooley v. Maynard,
430 U.S. 705 (1977) ..................................................................................................... 26
Yellowbear v. Lampert,
741 F.3d 48 (10th Cir. 2014) ....................................................................................... 27
Statutes and Constitutions
N.C. Gen. Stat. § 51-5.5 .................................................................................................... 29
U.S. Const. amend. I ...................................................................................................... 6, 15
U.S. Const. art. VI ............................................................................................................... 6
Wyo. Const. art. 21, § 25 ..................................................................................................... 4
Wyo. Const. art. 7, § 12 ....................................................................................................... 4
Wyo. Const. art. 1, § 18 .............................................................................................. passim
Wyo. Const. Preamble ......................................................................................................... 4
Wyo. Stat. § 5-9-213.......................................................................................................... 11
Wyo. Stat. § 20-1-106............................................................................................ 11, 26, 28
vi
Rules
Preamble, Wyo. Code of Judicial Conduct ....................................................................... 10
Rule 8, Wyo. Rules Governing
the Commission on Judicial Conduct and Ethics ........................................................... 30
Rule 18, Wyo. Rules Governing
the Commission on Judicial Conduct and Ethics ........................................................... 30
Rule 8.2, Wyo. Rules of Professional Conduct ................................................................. 25
Other Authorities
Andrew Koppelman,
Gay Rights, Religious Accommodations, and the Purposes
of Antidiscrimination Law, 88 S. Cal. L. Rev. 619 (2015) .......................................... 31
Cal. Comm. on Jud. Ethics Adv. Op.
(Nov. 12, 2015), http://www.judicialethics
opinions.ca.gov/sites/default/files/CJEO%20Oral%20
Advice%20Summary%202015-014.pdf ...................................................................... 24
Douglas Laycock,
Religious Liberty and the Culture Wars,
2014 U. Ill. L. Rev. 839 (2014) .................................................................................... 30
Essays on the Constitution of the United States,
Published During Its Discussion by the People 1797—1788
(Paul L. Ford ed., 1892) ............................................................................................. 6, 8
Journal and Debates of the Constitutional Convention
of the State of Wyoming
(The Daily Sun, Book and Job Printing 1893) ...................................................... passim
Oral Argument Transcript, Obergefell v. Hodges, 135 S. Ct. 2584 (2015),
http://www.supremecourt.gov/oral_arguments/
argument_transcripts/14-556q1_7l48.pdf .................................................................... 26
Pamphlets on the Constitution of the United States,
Published During Its Discussion by the People, 1787—1788
(Paul L. Ford ed., 1888) ........................................................................................... 8, 14
Pinedale Online News,
Candidate Questions & Answers on KPIN (Apr. 30, 2006),
vii
http://www.pinedaleonline.com/news/2006/04/
CandidateQuestionsAn.htm ......................................................................................... 24
Robert B. Keiter & Tim Newcomb,
The Wyoming State Constitution (2011) .................................................................... 8, 9
Robert B. Keiter and Tim Newcomb,
The Wyoming State Constitution, A Reference Guide (1993) ........................................ 5
1
SUMMARY OF ARGUMENT
After over twenty years of undisputedly sterling service, Judge Ruth Neely faces the
loss of her judicial offices simply because she publicly expressed a “decent and honorable
religious” belief about marriage which is shared by many state and federal judges across
the country. See Obergefell v. Hodges, 135 S. Ct. 2584, 2602 (2015). Contrary to U.S.
Supreme Court guidance on this issue, the Wyoming Commission on Judicial Conduct and
Ethics has declared that Judge Neely’s beliefs are so “repugnant” that any judge who
publicly expresses them “cannot remain in office.” That blatant hostility to traditional
religious beliefs about marriage violates both the United States and Wyoming
Constitutions.
Sex, marriage, and religion are deeply important issues about which Americans hold a
variety of beliefs. The freedom to form one’s own beliefs about these issues—and to
express those beliefs—is protected by the U.S. Constitution as central to each citizen’s own
dignity and self-definition. Obergefell, 135 S. Ct. at 2593. For religious citizens, as Justice
Kennedy recently explained, living according to their religion “is essential in preserving
their own dignity and in striving for a self-definition shaped by their religious precepts.”
Burwell v. Hobby Lobby, 134 S. Ct. 2751, 2785 (2014) (Kennedy, J., concurring). This
freedom includes not just the right to privately hold religious beliefs, but also the right to
express them—i.e., to “establish one’s religious . . . self-definition in the political, civic,
and economic life of our larger community.” Id.
The Supreme Court’s Obergefell decision illustrates this principle. The Court
recognized that marriage is a “transcendent” issue about which individuals should remain
2
free to make their own decisions, without government coercion. Obergefell, 135 S. Ct. at
2594, 2599-2604. The Court fully understood that, for millions of Americans, a marriage
is also a fundamentally religious event—one that “is sacred” and forms “a keystone of our
social order.” Id. at 2594, 2601. The Court saw no problem with people and institutions
holding the “decent and honorable religious or philosophical” belief that marriage is
limited to opposite-sex unions and recognized that this belief is held “in good faith by
reasonable and sincere people.” Id. at 2602, 2594. Instead, it emphasized that the
constitutional problem arises when the State itself makes citizens into “outlaw[s]” or
“outcast[s]” for pursuing a less popular view of marriage. Id. at 2600.
The same pluralism that animates Obergefell is commanded by decades of First
Amendment doctrine and by the terms of Wyoming’s constitution. See W. Va. St. Bd. of
Ed. v. Barnette, 319 U.S. 624, 642 (1943); Wyo. Const. art. 1, § 18. The Commission is no
more permitted to punish Judge Neely for living according to her view of marriage in
Wyoming than Ohio was free to punish Mr. Obergefell for living according to his view of
marriage in Ohio. Or, as one recently-married same-sex couple in Pinedale put it, “it would
be obscene and offensive to discipline Judge Neely for her statement . . . about her religious
beliefs regarding marriage.” C.R. 902.
The Commission offers two reasons to depart from this principle. First, it argues that
Judge Neely and those judges who share her beliefs suffer from an “inability to apply and
follow the law,” which is what “renders [them] incompetent to perform as a judge.” Order
at 6. But the law does not even authorize, much less require, Pinedale municipal judges to
perform marriage ceremonies. Nor does the law require Sublette County magistrates to
3
perform marriage ceremonies; it merely allows them the discretion to do so and allows
them to cite many reasons—including schedule, relationship, and convenience—for
declining to perform particular ones. This poses no barrier to same-sex marriages because
there are plenty of other individuals in Pinedale who will perform them. There is no
evidence that anyone in Pinedale who has wanted a marriage of any type has failed to
receive it promptly, courteously, and professionally.
Second, the Commission argues that banning Judge Neely and those with similar beliefs
from the bench is necessary to avoid the perception of bias. But in two decades of serving
as a judge, no one has ever complained that Judge Neely was biased. The only evidence is
to the contrary: Judge Neely has been an exemplary judge who treats LGBT citizens, like
all other citizens, with impartiality and fairness both inside and outside her courtroom.
Further, Wyoming already has a means for addressing possible or perceived bias: recusal.
Yet the Commission instead chooses a far more drastic, disproportionate punishment:
complete removal from any judicial position, regardless of whether that position is
authorized to perform marriages. Such overreach evinces the targeted and discriminatory
nature of the Commission’s actions.
If this Court were to sanction the Commission’s extreme position, it would purge the
Wyoming judiciary of people who hold and exercise “decent and honorable religious”
beliefs about marriage. That is both unnecessary and unconstitutional.
4
ARGUMENT
I. The Commission’s recommendation to remove Judge Neely from judicial
office violates Article 1, section 18 of the Wyoming Constitution.
The Wyoming Constitution places unusually strong emphasis on religious liberty, both
in its language and in its structure. The Constitution’s preamble identifies religious liberty
as an animating reason for establishing the Constitution in the first place. See Wyo. Const.
preamble. Its main free exercise guarantee is not only very strong, it is also placed in the
Declaration of Rights and must thus be construed liberally to protect individual liberty. Id.
art. 1, § 18. Yet another free exercise guarantee broadly protects religious liberty in public
schools. Id. art. 7, § 12. And the Constitution’s final article once more re-affirms the right
to religious liberty and places that guarantee among just a few others that can be repealed
only with the express consent of the U.S. Congress. Id. art. 21, § 25. Simply put,
Wyoming’s constitution ensures religion receives the broadest possible protection from
government encroachment.
That strong and repeatedly reinforced commitment to religious liberty in the text of the
Constitution is reinforced by the history of the text’s enactment. Indeed, the framers of the
Constitution actually considered a closely analogous but even harder question than the one
presented here: whether Wyomingites must be banned from public office for holding and
expressing deeply unpopular religious views in favor of polygamous marriage. And the
framers came down on the side of protecting religious liberty. This combination of text and
history—particularly of Article 1, section 18—confirm that the Commission’s
recommendation cannot stand.
5
A. The text and history of Article 1, section 18 show that religious views on
marriage do not render a judge incompetent to hold public office.
Article 1, section 18 of the Wyoming Constitution provides a robust, specific guarantee
of religious liberty by stating that Wyoming citizens cannot be removed from public office
because of their religious beliefs. And because that guarantee is located in the Declaration
of Rights section of the constitution, it must be construed liberally to protect individual
liberty. Vasquez v. State, 990 P.2d 476, 485 (Wyo. 1999) (quoting Robert B. Keiter and
Tim Newcomb, The Wyoming State Constitution, A Reference Guide 11-12 (1993)).
Section 18 provides:
The free exercise and enjoyment of religious profession and worship without
discrimination or preference shall be forever guaranteed in this state, and no
person shall be rendered incompetent to hold any office of trust or profit, or
to serve as a witness or juror, because of his opinion on any matter of
religious belief whatever; but the liberty of conscience hereby secured shall
not be so construed as to excuse acts of licentiousness or justify practices
inconsistent with the peace or safety of the state.
Wyo. Const. art. 1, § 18. This section begins generally, “forever guarantee[ing]” the “free
exercise” of “religious profession and worship.” Within this broad right, it defines a
specific protection: any person can hold “any office of trust” regardless of “his opinion on
any matter of religious belief whatever.” Several aspects of this language are important.
First, by protecting “free exercise,” the language protects not just religious beliefs, but
the exercise of those beliefs through action and abstention. In re LePage, 18 P.3d 1177,
1181 (Wyo. 2001) (stating that Section 18 protects “the free exercise of religion” from
“governmental interference”); Employment Div. v. Smith, 494 U.S. 872, 877 (1990)
(“exercise of religion” includes “the performance of (or abstention from) physical acts”).
6
Second, unlike the federal free exercise clause, which “simply attempts to restrain
governmental action,” Wyoming’s language “is of a distinctively stronger character” and
“expressly grants affirmative rights” to the free exercise of religion. State v. Hershberger,
462 N.W.2d 393, 397 (Minn. 1990) (construing similarly strong language in the Minnesota
constitution). The federal constitution restricts government from “prohibiting” religious
exercise, U.S. Const. amend. I; Wyoming “forever guarantees” religious exercise. Wyo.
Const. art. 1, § 18.
Third, the protection for service in public office in Section 18 is significantly more
explicit than the guarantees in state and federal counterparts. While those constitutions ban
“religious Test[s]” for public office, see, e.g., U.S. Const. art. VI, Wyoming prohibited any
government action that rendered any person incompetent from holding “any office of trust
or profit” based on “any matter of religious belief whatever.” Thus, Wyoming citizens are
protected not just from the narrow test oaths often imposed at the time of the founding—
such as questions about whether they are “presbyterians, episcopalians, baptists, or
quakers”—but from any type of disqualification from office based on religion. See Essays
on the Constitution of the United States, Published During Its Discussion by the People
1797—1788 at 169 (Paul L. Ford ed., 1892) (reprinting essay by Oliver Ellsworth, later
Chief Justice of the U.S. Supreme Court) (hereinafter Essays on the Constitution).
Finally, Wyoming’s broad guarantees of religious freedom are limited only in that they
cannot justify “acts of licentiousness” or a threat to “the peace or safety of the state.” But
even that limitation helps illuminate the breadth of the guarantees. If the framers had only
meant to cover belief and expression, there would have been no need to place a limit on
7
only a particular specified set of “acts.” And by specifying which “permissible
countervailing interests of the government” may “outweigh religious liberty,” the
Wyoming Constitution forecloses the argument that other interests might also outweigh
religious liberty. Hershberger, 462 N.W.2d at 397 (construing identical language); Walters
v. State ex rel. Wyo. Dep’t of Transp., 300 P.3d 879, 884 (Wyo. 2013) (it is a “fundamental
rule” that the “doctrine of expressio unius est exclusio alterius requires us to construe a
statute ‘that enumerates the subjects or things on which it is to operate . . . as excluding
from its effect all those not expressly mentioned.’” (internal citation omitted)).
The history of Article 1, section 18 confirms its broad scope. See Dworkin v. L.F.P.,
Inc., 839 P.2d 903, 910 (Wyo. 1992) (the “history” and “proceedings of our state
constitutional convention” are “a valuable aid in interpreting the scope of a provision of
the state constitution”). Before adopting its broad free exercise language, the Wyoming
Constitutional convention considered much weaker language, which limited the protection
of religious freedom to “matters of religious sentiment, belief, and worship,” and which
protected public officeholders solely from being forced to meet “religious qualification[s].”
Journal and Debates of the Constitutional Convention of the State of Wyoming 168 (The
Daily Sun, Book and Job Printing 1893) (hereinafter Journal). The convention’s decision
to reject that language is illuminating.
First, by protecting “free exercise” and “liberty of conscience” instead of mere
“sentiment, belief, and worship,” the convention again showed that it wasn’t protecting
merely thoughts and words, but religiously motivated conduct. Second, by rejecting
language that would have forbidden only “religious qualification[s]” for public office, the
8
convention showed that it wanted to do more than merely ban test oaths. Federal and state
provisions banning such oaths had a similar general aim as Wyoming—preventing
government officials from “incapacitat[ing] more than three-fourths of the American
citizens for any publick office” and “degrad[ing]” the excluded groups “from the rank of
freemen,” Essays on the Constitution at 169; and allowing “[t]he people [to] employ any
wise or good citizen in the execution of the various duties of the government.” Pamphlets
on the Constitution of the United States, Published During Its Discussion by the People,
1787—1788 at 146 (Paul L. Ford ed., 1888) (hereinafter Pamphlets on the Constitution).
But Wyoming could hardly have been clearer that it wanted to do more—it wanted to
remove every impediment to public office based on “any matter of religious belief
whatever.”
Two related convention debates concerning the scope of Section 18 are particularly
revealing. First, the convention considered an amendment “aimed at the state’s Mormon
population,” which would have limited Section 18’s broad protections by “prohibit[ing]
anyone who entered into or believed in polygamy from . . . holding public office.” Robert
B. Keiter & Tim Newcomb, The Wyoming State Constitution 69 (2011). The text of the
amendment banned from “any civil office” anyone who “is a bigamist or polygamist, or is
a believer in or enters into what is known as plural or celestial marriage.” Journal at 837.
When the language was offered at the convention, the proponents successfully moved to
suspend the rules and immediately consider the language. Id. at 837.
Two delegates then rose in opposition to the amendment. Before addressing the
substance of his objection, the first delegate noted that he did “not think it . . . right or just”
9
that the language was “offered now at this last day without any notice” and that while he
expected that proponents of the language had a “pocketful of speeches prepared upon this
question,” he did not. Id. at 838. Shifting to the substance, he then argued that “the language
of this section will have a bad effect upon a good many good citizens of Wyoming.” Id.
Further, he explained, the nature of their beliefs “make[] little difference” “if they are good,
law abiding citizens,” and he believed that it was clear that “while [Wyoming] may be
populated with a good many of this class of people who believe this way, they have proved
themselves to be law abiding citizens and peaceful citizens.” Id. He also argued that the
language inappropriately “point[ed] directly at one class of individuals” and showed “a
lack of confidence”—a “weakness”—that “we are not going to be able to cope with these
people in Wyoming” even though they “[n]ever caused any trouble in our territory.” Id. He
urged the convention to “do what is right” and reject the language. Id.
The second delegate emphasized that the language targeted Mormons, and he opposed
it “not because I have any personal sympathy with the[ir] religious convictions,” but
because “I don’t believe in selecting one class of crime, or in singling out a special religious
sect in the territory.” Id. at 839. The delegates then voted to rescind their prior vote to
consider the language. Id. at 839-40. Afterwards, a proponent of the language admitted that
the intended target was indeed Mormons, and that “[t]he percentage of Mormons is less
than one percent of the population of Wyoming.” Id. at 842.
This history shows that the broad protections of Section 18 were meant to powerfully
insulate minority religious views on marriage that were contentious, unpopular, and
contrary to established public policy. The Wyoming State Constitution 69 (2011) (rejecting
10
the amendment was a “[s]ignificant” move, since failing to do so “would have diminished
the principle of religious tolerance”).
The second related debate, this time over whether to subject jurors to a religious test to
ensure their honesty, reinforces the same point. The convention rejected religious tests for
jurors because the State “should take the man for what we know him to be without any
reference to what he professes to believe.” Journal at 720-21. Imposing a religious test
would inappropriately counter the Constitution’s desired “breadth and freedom from all
prejudice.” Id. at 720.
This debate helps illustrate why the convention was willing to keep public office open
to individuals who held and expressed such a disfavored religious view of marriage as
polygamy. In the mind of the framers, the important question was not what a person
believed and expressed about marriage—or what the community thought about those
beliefs—but rather simply whether the person could do the job.
B. The Commission’s recommendation violates Article 1, section 18.
The Commission’s recommendation violates both the text and spirit of Section 18. The
“office of judge” is an “office of trust or profit” within the meaning of the Constitution,
and the Commission does not argue otherwise. See State v. Jefferis, 178 P. 909, 915 (Wyo.
1919); see also Preamble, Wyo. Code of Judicial Conduct (“the judicial office [i]s a public
trust”); Order at 6 (assuming judicial office qualifies as an “office of trust”). The
Commission also ruled that Judge Neely is “incompetent to hold . . . office” because of her
expression of her “opinion on . . . [a] matter of religious belief.” Wyo. Const. art. 1, § 18.
Both its final order and its theory of prosecution condemned Judge Neely for “express[ing]
11
. . . her inability to perform same sex marriages,” which it admitted was her “opinion
regarding same-sex marriage” and was based on “her honestly held religious belief.” Order
at 5. Thus, the Commission’s recommendation strikes at the heart of Section 18.
The Commission tries to dissemble on this point and say its action is about her “inability
to apply and follow the law” and not her religious “opinion on same-sex marriage.” Order
at 6. But that fails for three reasons. First, the Commission’s dodge fails on its own terms:
there is no evidence before this Court that Judge Neely has ever failed to apply or follow
the law. No law requires her to perform marriage ceremonies. The Commission conceded
at oral argument that a magistrate or circuit judge does not have a “duty to perform
marriages” and that the power is “discretionary.” C.R. Vol. 7, Part 1 at 42; accord id. (“I
don’t think that a magistrate or a circuit judge, just because someone comes into the office
and asks them to do a marriage, has to do the marriage.”). And the relevant statute which
enables magistrates to choose to perform a marriage ceremony applies equally to, among
others, “every licensed or ordained minister of the gospel, bishop, priest [and] rabbi.” Wyo.
Stat. § 20-1-106(a). Surely the Commission does not mean to suggest that this same statute
likewise creates an obligation on clergy to personally perform wedding ceremonies for
everyone who walks into their church, parish, synagogue, or mosque. Moreover, to the
extent that Judge Neely does perform marriages, she does so voluntarily. Judge Neely
receives no salary as a part-time magistrate and has never been paid by the State to perform
marriages as a magistrate. C.R. 502-04; Wyo. Stat. § 5-9-213 (setting terms of payment for
part-time magistrates). Rather, the only State payments for her service as a magistrate have
been for activities such as holding a bail hearing or providing a warrant. Id.
12
Second, the Commission clearly admitted that it does hold Judge Neely’s religious
opinion about marriage in contempt. Most obviously, it concluded that expressing her
religious belief about marriage “manifested a bias” that is “antithetical to the important role
of judges in our democracy.” Order at 5. The Commission likewise emphasized that “Judge
Neely’s inability to perform same sex marriages was not based upon her schedule, but on
her religious beliefs.” Order at 2. If Judge Neely’s decision had been schedule-based (or
based on any number of other criteria, such as geography, familiarity, friendship, or
kinship), then she would not have been punished. C.R. 361-62, 372, 438, 465. Indeed,
unlike Judge Neely—a part-time magistrate who is not paid by the State to do weddings
and who was only asked about same-sex weddings as a hypothetical—her supervisor, full-
time Circuit Court Judge Curt Haws, declined an actual request to officiate a same-sex
wedding in the regular course of his paid judicial service. C.R. 372. He declined because
of a scheduling conflict, and he is not facing punishment. Id. Thus, the Commission does
not believe that declining to perform same-sex weddings for “scheduling” purposes is
“antithetical” to a judge’s role. Instead, it is precisely because Judge Neely said she would
respectfully decline based on her religious belief that the Commission seeks to punish her.
And, in fact, Commission representatives have repeatedly attacked Judge Neely’s beliefs
as “repugnant,” “cast[ing] the Wyoming judiciary” into “disrepute,” and as “tarnish[ing]”
the reputation of the State. C.R. Vol. 7, Part 1 at 52, 73; C.R. 57.
Finally, Judge Neely has two relevant sincere religious opinions at issue: first, about the
nature of marriage, and second, about her inability to personally perform marriages which
violate that first belief. And it is precisely because of those two beliefs that the Commission
13
found her incompetent to perform as a judge. Order at 4 (condemning “announcing her
position against same sex marriage and her decision not to perform said marriages”).
Indeed, the Commission did not introduce evidence that Judge Neely was unable to do the
basic functions of her job, such as adjudicate ordinance violations or hold bail hearings.
Nor did it introduce actual evidence of bias or partiality by Judge Neely. In fact, a member
of the Commission’s Adjudicatory Panel conceded that, with the exception of her stated
religious belief, “Judge Neely has served the community well” and that “there’s been no
evidence that she’s done anything except be a well-recognized and respected judge in the
community[.]” C.R. Vol. 7, Part 1 at 32. And the record shows that LGBT citizens in
Pinedale have full confidence in Judge Neely’s ability to adjudicate their cases regardless
of her beliefs on marriage. C.R. 901 (“I consider [Judge Neely] to be a conscientious, fair,
and impartial person. I have no doubt that she will continue to treat all individuals
respectfully and fairly inside and outside her courtroom”); see also C.R. 884-902
(affidavits of Pinedale citizens affirming Judge Neely’s impartiality).
Thus, the Commission has missed the lesson, and violated the rule, of Section 18.
Instead of “tak[ing] the [Judge] for what we know h[er] to be without any reference to what
[s]he professes to believe,” Journal at 720-721, the Commission is disregarding her
undisputedly sterling service record and punishing her for holding and expressing her
opinions on a “matter of religious belief.” Wyo. Const. art. 1, § 18.
Nor can punishing Judge Neely be excused on the ground that expressing her religious
beliefs was an “act[] of licentiousness” or “inconsistent with the peace and safety of the
state.” Id. As the U.S. Supreme Court explained in Obergefell, her beliefs are “decent and
14
honorable,” are held “in good faith by reasonable and sincere people,” and are entitled to
protection. 135 S. Ct. at 2602, 2594. That the Commission disagrees with them does not
make them either “licentious” or a threat to “peace and safety.”
It is not hard to see what is going on here. The Commission strongly disagrees with
Judge Neely’s religious beliefs about marriage. It considers such beliefs about marriage to
be “the equivalent of thinking that “black students” must attend “segregated schools,” and
it thinks such beliefs must be consigned to “churches” and “coffee shops.” C.R. Vol. 7,
Part 1 at 36, 44. It is attempting to remove her from judicial office because of those beliefs.
That is a textbook violation of Section 18.
The better course is the one the Wyoming framers adopted. Instead of marriage-
viewpoint litmus tests on public service, which will have a “bad effect upon a good many
good citizens of Wyoming” and “singl[e] out a special religious [belief]” for punishment,
public office should be open to any “wise or good citizen” who can do the job. Journal at
838-839; Pamphlets on the Constitution at 146. Here, Judge Neely is not only capable of
doing her job, but has been doing it very well for decades. C.R. 884-902. Her religious
beliefs on marriage should not disqualify her from adjudicating traffic tickets.
II. The Commission’s recommendation to remove Judge Neely from both of
her judicial positions violates the Free Exercise Clause of the U.S.
Constitution.
The Commission’s recommendation also violates the federal Free Exercise Clause
because it targets her religious beliefs, is not neutral or generally applicable, and fails strict
scrutiny.
15
A. The Commission’s recommendation impermissibly punishes Judge
Neely for her religious beliefs.
The Free Exercise Clause, which was made applicable to the States by the Fourteenth
Amendment, forbids any law “prohibiting the free exercise [of religion].” U.S. Const.
amend. I. At a bare minimum, this means that the government cannot penalize “religious
beliefs as such.” Sherbert v. Verner, 374 U.S. 398, 402 (1963). Any attempt to “punish the
expression of religious doctrines” or “impose special disabilities on the basis of religious
views” is categorically forbidden, Smith, 494 U.S. at 877—meaning that the government
does not even get to try to justify its actions under strict scrutiny. See, e.g., Torcaso v.
Watkins, 367 U.S. 488 (1961) (not applying strict scrutiny); Braunfeld v. Brown, 366 U.S.
599, 603 (1961) (“The freedom to hold religious beliefs and opinions is absolute.”).
As explained above, punishing religious belief is precisely what the Commission has
attempted to do here. Judge Neely is not required by her job to perform same-sex marriages
and has never even been asked to do so. Instead, she is being punished for stating “her
honestly held religious belief” and her “opinion regarding same-sex marriage.” Order at 2,
5. Nor is it any answer to say that she is being punished for the “act” of stating her belief
to others; the Free Exercise Clause categorically protects both “the act of declaring a belief
in religion” and “the act of discussing that belief with others.” McDaniel v. Paty, 435 U.S.
618, 635 (1978) (Brennan, J., concurring).
B. The Commission’s recommendation is not neutral because it targets
Judge Neely’s religious conduct.
Even assuming the Commission was regulating only Judge Neely’s conduct—not her
beliefs—the Commission still violated the Free Exercise Clause. Under the Free Exercise
16
Clause, restrictions on religious conduct are subject to strict scrutiny unless they are both
“neutral” and “generally applicable.” Smith, 494 U.S. at 880. Here, the proposed
punishment of Judge Neely is neither.
A government action is not “neutral” if its “object or purpose” is to “restrict practices
because of their religious motivation.” Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520, 533 (1993); Smith, 494 U.S. at 877 (government unconstitutionally
restricts free exercise where it “sought to ban . . . acts or abstentions [from acting] only
when they are engaged in for religious reasons, or only because of the religious belief that
they display.”). Although the Commission claims that its action was “facially neutral”,
Order at 5, the Supreme Court has held that “[f]acial neutrality is not determinative.”
Lukumi, 508 U.S. at 534. Rather, the Free Exercise Clause also forbids “covert
suppression” of religion and “subtle departures from neutrality.” Id.
Here, there is nothing “subtle” about the Commission’s effort to punish Judge Neely
because her conduct is religiously motivated. If Judge Neely had declined to perform a
same-sex wedding for any number of other motivations—for example, because she wanted
to perform marriages only for her friends and family, only at certain times or locations, or
only when it didn’t conflict with her “fishing,” “football game[s],” or getting her “hair
done”—or even because she “just d[id]n’t feel like it”—that would be permissible. C.R.
361-62, 372, 438, 465. But because she expressed her religious motivation, the
Commission seeks to punish her.
The Commission’s own words confirm its intent to target Judge Neely’s religious
motivation. It specifically faulted her for “giv[ing] precedence to her religious beliefs.”
17
C.R. 55 (emphasis added). It said that her beliefs constituted “a discriminatory attitude
toward the LGBT community” that made her incapable of acting “impartially.” Id. at 58
(emphasis added). It gratuitously invoked her religious denomination, stating that the Code
“makes no exception for members of the Missouri Synod of the Lutheran church.” Id. at
54. And it intimated that “her opinions [on marriage] were not judicially appropriate.” Id.
at 56.
The Commission’s prosecutor—who acts on behalf of the Commission—went even
further. He condemned Judge Neely’s religious beliefs as “every bit as repugnant as I found
the Mormon Church’s position on black people.” C.R. Vol. 7, Part 1 at 73-74. He impugned
the sincerity of her “quote, sincere religious conviction.” C.R. Vol. 7, Part 2, at 7. And he
recommended sanctioning her $40,000 because of what he called her “holy war.” C.R. Vol.
7, Part 2 at 7, 38.
The Commission’s choice of the most draconian punishment available further confirms
that its action was not religiously neutral. As the Supreme Court has said, “gratuitous
restrictions” on religious conduct suggest that the government “seeks not to effectuate the
stated governmental interests, but to suppress the conduct because of its religious
motivation.” Lukumi, 508 U.S. at 538. The same is true of gratuitous punishment. Here,
the Commission acknowledged that the law was unsettled. This was “a very big issue that
has not really been decided.” C.R. Vol. 7, Part 1 at 17. “[T]here were no formal Wyoming
ethics opinions out there.” C.R. Vol. 7, Part 2 at 14. And even looking to other jurisdictions,
there were “no decided cases . . . on th[is] question[].” C.R. Vol. 7, Part 1 at 72, 76. Yet of
all the possible sanctions it could have chosen for a judge facing a novel and uncertain
18
situation—warning, censure, recusal, etc.—it chose the harshest: removal from office. And
not just removal from the volunteer magistrate position where Judge Neely might perform
marriages, but removal from a municipal judgeship where she cannot perform any
marriages. If the Commission simply wanted to deter Judge Neely and others from voicing
their religious beliefs about marriage publicly, a warning or censure would suffice. But the
use of the harshest punishment available suggests that the Commission did not merely want
to keep Judge Neely quiet, but to punish her because the Commission disapproved of her
religious beliefs.
Finally, to determine whether a government action is neutral, courts should examine
“the specific series of events leading to” the action. Lukumi, 508 U.S. at 540 (opinion of
Kennedy, J.). Here, those events show that the investigation of Judge Neely was hardly
neutral. The investigation was initiated by the Executive Director of the Commission,
Wendy Soto, who had also served on the Board of Wyoming Equality, a leading LGBT-
rights organization. C.R. 31. When Ms. Soto overheard the Chair of the Wyoming
Democratic Party describing a newspaper article about Judge Neely’s religious beliefs, she
asked the Chair to send her the article and encouraged her to file a complaint. Id. at 75-78.
On the same day she received the article, Ms. Soto selected an Investigatory Panel and
initiated an “own motion” proceeding against Judge Neely—a rare type of proceeding that
Ms. Soto had never initiated against any other judge. Id. at 55-56. Most importantly, Ms.
Soto admitted that she would not have initiated an investigation if Judge Neely had offered
a nonreligious reason for declining to perform same-sex marriages, such as that she only
married friends or family, only performed marriages within a particular geographic area,
19
or simply “didn’t feel like” performing a marriage. C.R. 438. This confirms that Judge
Neely never would have been investigated, much less punished, but for her religious
motivation.
C. The Commission’s recommendation is not generally applicable because
it favors nonreligious conduct.
The Commission’s recommendation is also subject to strict scrutiny because it is not
generally applicable. One way to show that a law is not generally applicable is to show that
the government has discretion to make exceptions based on an “individualized
governmental assessment of the reasons for the relevant conduct.” Smith, 494 U.S. at 884.
The reason for this rule is simple. When the government applies an “across-the-board”
prohibition on all conduct, there is little risk that it is discriminating against religious
conduct. Id. But when an open-ended law lets government officials grant exceptions on a
case-by-case basis, there is a risk that the law will be “applied in practice in a way that
discriminates against religiously motivated conduct.” Blackhawk v. Pennsylvania, 381
F.3d 202, 209 (3rd Cir. 2004) (citing Smith). That risk justifies strict scrutiny. Id.
The Tenth Circuit’s decision in Axson-Flynn v. Johnson, 356 F.3d 1277, 1294 (10th
Cir. 2004) is instructive. There, a former student in a state university acting program sued
the university under the Free Exercise Clause, alleging that it had pressured her to say
certain curse words or “take God’s name in vain” in violation of her religious beliefs. Id.
at 1280. In response, the university claimed that it was simply enforcing a neutral curricular
requirement that all acting students recite their scripts as written. The Tenth Circuit,
however, ruled against the university. Noting that the university had made exceptions to its
20
curricular requirement in the past, the Court held that there was a material dispute of fact
over whether the university “maintained a discretionary system of making individualized
case-by-case determinations regarding who should receive exemptions from curricular
requirements.” Id. at 1299.
Here, the Executive Director of the Commission, Ms. Soto, admitted that she had
discretion to make case-by-case decisions about whether to initiate investigations. She said
that she could decline to report a magistrate who refused to remarry individuals who had
repeatedly been divorced, or even a magistrate who refused to conduct any marriages until
same-sex marriage was legalized. C.R. 439-40. She also admitted that she would not have
initiated an investigation if Judge Neely had expressed an unwillingness to perform same-
sex marriages for various nonreligious reasons (she didn’t feel like it, didn’t like marrying
strangers, didn’t like traveling, etc.). C.R. 438. In other words, the initiation of an
investigation by the Commission “just depends on what the specific circumstances were,
or what the information was.” C.R. 443. This is a textbook example of an “individualized
governmental assessment of the reasons for the relevant conduct,” and it therefore requires
strict scrutiny. Smith, 494 U.S. at 884.
The Commission’s action is also subject to strict scrutiny because it represents a “value
judgment in favor of secular motivations, but not religious motivations.” Fraternal Order
of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359, 366 (3rd Cir. 1999). In
Lukumi, for example, the city argued that its ban on animal slaughter was a generally
applicable rule designed to promote public health and prevent animal cruelty. But the
Supreme Court rejected that argument, noting that the ordinances exempted a wide variety
21
of conduct that also undermined the government’s interest in public health and preventing
animal cruelty, such as hunting, pest control, and euthanasia. 508 U.S. at 543-44. Similarly,
in Fraternal Order, the Third Circuit struck down a police department policy that
prohibited police officers from growing beards for religious reasons, but allowed beards
for medical reasons, concluding that this represented an unconstitutional “value judgment
in favor of secular motivations, but not religious motivations.” Fraternal Order, 170 F.3d
at 366.
The same is true here. According to the Commission, magistrates can decline to perform
marriages for a variety of nonreligious reasons—such as a desire to marry only friends and
family, only at certain times or locations, or only when it doesn’t conflict with their
“fishing,” “football game[s],” or “hair” appointments. C.R. 361-62. Judge Neely’s own
supervisor declined to perform a same-sex marriage in Pinedale because he was doing a
“performance” in Jackson, and he obviously faced no punishment. C.R. 372. The
Commission even admitted that magistrates can decline to perform same-sex weddings
simply because they “don’t feel like it.” C.R. 438 (Soto admission). Yet when Judge Neely
says that she would decline based on her religious beliefs, she is punished. This is a
quintessential example of a “value judgment in favor of secular motivations, but not
religious motivations.” Fraternal Order, 170 F.3d at 366; see also Lukumi, 508 U.S. at
543. Accordingly, strict scrutiny is required.
D. The Commission’s recommendation fails strict scrutiny.
Strict scrutiny is the “most demanding test known to constitutional law.” City of Boerne
v. Flores, 521 U.S. 507, 534 (1997); Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015)
22
(applying strict scrutiny to judicial ethics restrictions on a judicial candidate’s speech);
Rep. Party of Minn. v. White, 536 U.S. 765 (2002) (same). To pass this scrutiny, the
Commission must prove that its recommendation to ban Judge Neely from judicial office
is the “least restrictive means” of achieving a “compelling state interest.” Thomas v. Review
Bd., 450 U.S. 707, 718 (1981); accord Washakie Cnty. Sch. Dist. No. One v. Herschler,
606 P.2d 310, 333 (Wyo. 1980) (same). It cannot do so.
1. There is no compelling interest in requiring Judge Neely to perform
wedding ceremonies that violate her faith.
As the unanimous U.S. Supreme Court explained, “a law cannot be regarded as
protecting an interest of the highest order when it leaves appreciable damage to that
supposedly vital interest unprohibited.” Lukumi, 508 U.S. at 547 (internal citation omitted);
Miller v. City of Laramie, 880 P.2d 594, 597 (Wyo. 1994) (government has the “onerous
burden of demonstrating clearly and precisely that the ordinance is, in fact, applied in a
nondiscriminatory manner”). Here, there are three reasons the government does not have a
compelling interest to force Judge Neely to violate her faith.
First, as shown above, Judge Neely is not required by law to perform any weddings,
much less those that directly violate her faith. The law cannot treat as compelling what it
does not even bother to require.
Second, as also shown above, the law does not have a compelling interest in privileging
secular motivations over religious motivations. Fraternal Order, 170 F.3d at 366; see also
Lukumi, 508 U.S. at 543. That is what the Commission seeks to do here. The Commission
permits Judge Neely to tell same-sex couples, as Judge Haws did, that she will not do their
23
weddings because of scheduling conflicts. It likewise permits her to cite relational,
geographical, or financial motivations. But it specifically bans her from relying on her
religion. That “[]discriminatory manner” of enforcement is not even constitutional, much
less compelling. Miller, 880 P.2d at 597.
Third, there is no compelling interest in requiring judges to adopt the government’s
views on marriage. The Commission argues that it has an interest in protecting same-sex
couples from the perception of bias and partiality, and that this interest is implicated
because of Judge Neely’s beliefs on marriage and the public’s awareness of that belief.
Order at 5-6. But this fails for a number of reasons.
To begin with, it is too general. “[S]trict scrutiny” requires courts to “look[] beyond
broadly formulated interests justifying the general applicability of government mandates
and scrutiniz[e] the asserted harm of granting specific exemptions to particular religious
claimants.” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418,
430-31 (2006). This is a tall order, and the Commission failed to take the first necessary
step: “offer[ing] evidence” proving that its interest was threatened by a judge who exercises
her legal discretion to decline to perform certain marriages. Id. at 437.
Further, even if some found it offensive that Judge Neely said she would decline to
personally perform a same-sex marriage and would refer inquiring same-sex couples to a
different judge, there is no compelling interest in shielding individuals from offense.
Rather, a “bedrock principle underlying the First Amendment” is that “the government may
not prohibit the expression of an idea simply because society finds the idea itself
offensive.” Snyder v. Phelps, 562 U.S. 443, 458 (2011); Sherbert, 374 U.S. at 402
24
(“Government may . . . [not] penalize or discriminate against individuals or groups because
they hold religious views abhorrent to the authorities”). That is particularly true here, where
Judge Neely is expressing a “decent and honorable religious” belief held by “reasonable
and sincere people” across Wyoming. Obergefell, 135 S. Ct. at 2594, 2602. The goal of
non-offense would also directly threaten the ability of judges to participate in the religious
communities that hold such “decent and honorable religious” beliefs. But see Cal. Comm.
on Jud. Ethics Adv. Op. at 4 (Nov. 12, 2015), http://www.judicialethics
opinions.ca.gov/sites/default/files/CJEO%20Oral%20Advice%20Summary%202015-
014.pdf (a judge may belong to a religious organization that discriminates on the basis of
sexual orientation if the “organization [is] dedicated to the preservation of religious values
of legitimate common interest” to the organization).
Moreover, it’s hard to square the Commission’s recommendation against Judge Neely
with the fact that judges are allowed to make numerous other statements that could just as
easily offend other members of the community. For instance, the Commission never
complained that one of Judge Neely’s fellow part-time circuit magistrates, Judge Stephen
Smith, concurrently served as Pinedale’s elected mayor for eight years, ran for office in
three elections, and announced his party affiliation and his position on political issues. C.R.
574; Pinedale Online News, Candidate Questions & Answers on KPIN (Apr. 30, 2006),
http://www.pinedaleonline.com/news/2006/04/CandidateQuestionsAn.htm.
Nor does the Commission’s view square with the vehement statements that members
and representatives of the Commission have made against Judge Neely’s religious beliefs.
For instance, the Commission’s disciplinary counsel, Patrick Dixon, repeatedly branded
25
those beliefs as “repugnant” and the equivalent of racism and bigotry against disabled
people. C.R. Vol. 7, Part 1 at 73-74. He also attacked the “Missouri Synod of the Lutheran
Church” and “Mormon Church” by name. Id. These are deeply offensive comments to
many religious Wyoming citizens. Thus, under the Commission’s position, Mr. Dixon
himself could never serve in judicial office. Cf. Rule 8.2, Wyo. Rules of Professional
Conduct at Cmt. 3 (“A lawyer who, in the course of representing a client, knowingly
manifests by words or conduct, bias or prejudice based upon . . . religion . . . [commits
misconduct] when such actions are prejudicial to the administration of justice”).
Fortunately, the Commission’s view is not the law. Officials cannot take sides on
religious matters and wield government power to silence their opposition. Good News Club
v. Milford Central Sch., 533 U.S. 98, 119 (2001) (rejecting “a modified heckler’s veto, in
which a group’s religious activity can be proscribed on the basis of what” others perceive).
Of course, while a generalized interest in “impartiality” is not a “compelling state
interest,” there is compelling interest in preventing actual bias or partiality. White, 536
U.S. at 777. This arises when a judge is partial toward specific parties. Id. Here, the record
before this Court shows Judge Neely is impartial and unbiased, and so the Commission has
no interest in removing her. C.R. 898-901.
But although the State does not have a compelling interest in punishing Judge Neely, it
does have a compelling interest in protecting her and others who share her beliefs by
evaluating them based upon their abilities, not upon their religious beliefs. That interest is
particularly compelling in the context of a marriage ceremony.
26
Wedding ceremonies themselves are inherently, and often religiously, expressive
events. Kaahumanu v. Hawaii, 682 F.3d 789, 798-99 (9th Cir. 2012) (“The core of a
wedding ceremony’s ‘particularized message’ is easy to discern” and “convey[s] important
messages about the couple, their beliefs, and their relationship to each other and to their
community”). This Court has recognized marriage as “the most sacred of all contracts,”
one which has had “religious” components since at least “ancient Rome.” In re Roberts’
Estate, 133 P.2d 492, 493 (Wyo. 1943). Wyoming law recognizes that component’s
continued vitality today in the role that a “minister of the gospel, bishop, priest, or rabbi”
plays in performing marriages “in accordance with” their faith. Wyo. Stat. § 20-1-106.
Thus, Wyoming rightly makes performing marriages discretionary. Id. Our nation does
not even force people to bear governmental messages on their license plates or wear t-shirts
bearing innocuous messages. Wooley v. Maynard, 430 U.S. 705, 717 (1977); Frudden v.
Pilling, 742 F.3d 1199, 1206 (9th Cir. 2014). It likewise cannot force people to personally
participate in others’ marriage ceremonies. Wooley, 430 U.S. at 707-08, 715 (government
cannot “force[] an individual” to express a “point of view” that deeply violates her “moral
[and] religious . . . beliefs.”); Oral Arg. Tr. at 26:9-15, Obergefell v. Hodges, 135 S. Ct.
2584 (2015), http://www.supremecourt.gov/oral_arguments /argument_transcripts/14-
556q1_7l48.pdf (Justice Kagan: “[T]here are many rabbis that will not conduct marriages
between Jews and non-Jews, notwithstanding that we have a constitutional prohibition
against religious discrimination. And those rabbis get all the powers and privileges of the
State, even if they have that rule.”).
27
Moreover, the Commission’s recommendation “cannot help but to have a tremendous
chilling effect on the exercise of First Amendment rights” by other current and future
Wyoming judges. Holloman v. Harland, 370 F.3d 1252, 1269 (11th Cir. 2004); see also
Rep. Party of Minn. v. White, 416 F.3d 738, 746 (8th Cir. 2005) (en banc) (“Wersal, fearful
that other complaints might jeopardize his opportunity to practice law, withdrew from the
race.”); Heffernan v. City of Paterson, No. 14–1280, 2016 WL 1627953, at *5 (April 26,
2016) (“We also consider relevant the constitutional implications” of “discouraging
[governmental] employees—both the employee discharged (or demoted) and his or her
colleagues—from engaging in protected activities”). So there is a compelling interest at
stake here, and it calls for rejecting the Commission’s recommendation.
2. Removing Judge Neely is not the least restrictive means of
furthering the Commission’s stated interests.
Even if the Commission successfully proved that it had a compelling interest supporting
its recommendation, it would have to further prove that banning Judge Neely from office
is the least restrictive means of furthering that interest. This requirement is “exceptionally
demanding.” Hobby Lobby, 134 S. Ct. at 2780. If a less restrictive alternative would serve
the government’s purpose, “the legislature must use that alternative.” U.S. v. Playboy
Ent’mt Grp., Inc., 529 U.S. 803, 813 (2000) (emphasis added). To make this showing, the
government must “prove” that no other approach will work, Id. at 816, 826, and “must”
“refute . . . alternative schemes suggested by the plaintiff.” Yellowbear v. Lampert, 741
F.3d 48, 62 (10th Cir. 2014). The Commission has not done so.
28
a. Wyoming has other ways of ensuring full access to marriage
ceremonies without punishing Judge Neely.
The Commission repeatedly argued below that this case is similar to a case concerning
a county clerk who refused to issue any licenses because of her objection to same-sex
marriage. C.R. Vol. 7, Part 1 at 72, 76, citing Miller v. Davis, 123 F. Supp. 3d 924 (E.D.
Ky. 2015); but see id. at 72 (admitting this “truly is a different case”). The analogy fails on
a number of levels. The most obvious reason is that the clerk’s refusal to provide licenses
created, at some level, a barrier to marital access. Not so here.
Wyoming provides an expansive list of who can “perform the ceremony of marriage”:
“every district or circuit court judge, district court commissioner, supreme court justice,
[and] magistrate,” along with “every licensed or ordained minister of the gospel, bishop,
priest or rabbi,” and all “other qualified person[s] acting in accordance with the traditions
. . . of any religion, denomination or religious society.” Wyo. Stat. § 20-1-106. Even invalid
officiants can solemnize a wedding “if the parties believe in good faith that they have been
lawfully married.” In re Roberts' Estate, 133 P.2d at 500.
And, in fact, “[p]lenty of people in Sublette County . . . are willing to perform marriage
ceremonies for same-sex couples.” C.R. 901. Since same-sex marriage was recognized in
Wyoming, “[n]o one’s been denied the opportunity” to get married. C.R. 372. There are
several officials in the area who will perform a same-sex ceremony, and Judge Haws will
even make special one-day magisterial appointments for citizens who want to perform a
marriage for a family member or a friend. C.R. 353. Given that only two same-sex
29
weddings have been performed in Pinedale since 2014, there is considerably more supply
than demand when it comes to officiants. C.R. 372.
b. There are numerous less restrictive ways of addressing concerns
about perceived bias or partiality.
To the extent the Commission is concerned about perceptions of bias or partiality, it
can address that in numerous ways that do not require banning Judge Neely and those who
share her beliefs from judicial office.
The easiest and most obvious solution is referral. The government could instruct
magistrates with religious objections about personally performing certain marriages to
handle marriage requests the same way they are already permitted to decline for secular
reasons: politely and promptly refer the requesting party to another magistrate who can
perform the marriage. Indeed, that magistrates are regularly permitted to decline to perform
weddings for a variety of secular reasons shows that the government has less restrictive
ways of providing for all applicants seeking a marriage ceremony. Davila v. Gladden, 777
F.3d 1198, 1207 (11th Cir. 2015) (“That the [government’s] own policy contemplates
exemptions . . . undercuts the Defendants’ argument that a categorical prohibition on . . .
religious objects is the least restrictive means of achieving their objectives”).
Second, if the Commission somehow proved that such a referral system was
unworkable only in the context of religious motivations, Wyoming could adopt North
Carolina’s approach: allow “[e]very magistrate” the “right to recuse from performing all
lawful marriages” where required by “any sincerely held religious objection.” N.C. Gen.
Stat. § 51-5.5. Again, this recusal occurs behind-the-scenes and does not require informing
30
any inquiring party of a magistrate’s religious objection. Notably, though, as explained
above, such an all-or-nothing recusal system could not be targeted at religious recusals. If
the State is willing to permit ad hoc recusal/referral based on non-religious motivations, it
cannot penalize religious motivations. Lukumi, 508 U.S. at 538.
Finally, to the extent the Commission could prove a religiously neutral, compelling
need to punish Judge Neely, it still had many far less drastic means of correction. The
Commission could have issued a letter of correction; a private censure, reprimand, or
admonishment; a monetary sanction; or some form of temporary discipline or interim
suspension. See Rule 8(d) of the Rules Governing the Commission on Judicial Conduct
and Ethics. If it wished to go further, it could have recommended that the Wyoming
Supreme Court issue a longer-term suspension, a public censure, a reprimand, an
admonishment, or retirement. Id. at Rule 18. While even these lesser punishments are
unnecessary here, the Commission nonetheless chose the most severe punishment
available: removal. On the novel facts before this Court, that is not just disproportionate,
but vindictive. It is certainly not the least restrictive means of furthering any governmental
interest, and it strongly suggests that the Commission was targeting Judge Neely because
of her religious beliefs. Lukumi, 508 U.S. at 538.
CONCLUSION
In our pluralistic society, the law should not be used to coerce ideological conformity.
Rather, on deeply contested moral issues, the law should “create a society in which both
sides can live their own values.” Douglas Laycock, Religious Liberty and the Culture Wars,
31
2014 U. Ill. L. Rev. 839, 877 (2014). That is precisely how Wyoming has approached this
issue since its founding as a State.
The U.S. Supreme Court’s Obergefell decision affirms this approach for the issue of
marriage. That is why Obergefell emphasized that the constitutional problem arose not
from the multiplicity of good faith views about marriage, but from the enshrining of a
single view into law which excluded those who did not accept it as “outlaw[s]” and
“outcast[s].” 135 S. Ct. at 2600, 2602.
Dignity is a two-way street. It would be at least as wrong for a government to make
Judge Neely and all who share her beliefs outcasts for living and expressing their
understanding of marriage as it was to make Mr. Obergefell an outcast for living and
expressing his. Andrew Koppelman, Gay Rights, Religious Accommodations, and the
Purposes of Antidiscrimination Law, 88 S. Cal. L. Rev. 619, 629-30 (2015) (noting the
severe “burden” on individuals whose “religious beliefs really forbid” them to personally
participate in “same-sex weddings,” since they are forced to “abandon” their job). And it
would profoundly misunderstand Obergefell to mandate such a course.
If this Court faithfully applies the Wyoming Constitution, the First Amendment, and
Obergefell, everyone can win: Same-sex couples can have full access to the legal institution
of marriage, and religious individuals can remain in public office if they hold a traditional
religious view of marriage. There is room enough in our pluralistic democracy for both
sides to live according to their respective views of sex, marriage, and religion. It is not the
government’s role to punish either side for their views on these subjects.
For all these reasons, this Court should reject the Commission’s recommendation.
